March 13, 2018 Articles

Problems with Authenticity in Social Media

The appeals court’s careful analysis provides litigators with touchstones for selecting experts whose opinions will pass muster

by Kirsten Fraser

Complaints about authenticity in social media are not limited to complaints that people only portray the best of their lives while concealing the reality. Authenticating social media evidence can also be a challenge in court. Two recent cases demonstrate how courts have been handing the issue of authenticating social media in trials.

To begin, the rules of evidence require evidence to be authenticated in order for it to be admissible. Federal Rule of Evidence 901(a) states, “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Federal Rule of Evidence 901(b) goes on to provide a non-exhaustive list of evidence that satisfies the authenticity requirement and includes testimony of a witness with knowledge (Fed. R. Evid. 901(b)(1)), comparison by an expert witness or trier of fact (Fed. R. Evid. 901(b)(3)), and methods provided by a statute or rule (Fed. R. Evid. 901(b)(10)). How does this translate to social media?

A recent case out of Texas is instructive. In Norris v. State, App. No. 06-16-00150-CR, 2017 Tex. App. LEXIS 3724 (Apr. 27, 2017), the defendant, Norris, was convicted by a jury of indecency with a child. On appeal, Norris argued that the trial court abused its discretion by admitting allegedly unauthenticated texts sent by cell phone over Facebook Messenger. See id. at *1. The incriminating messages to the victim over Facebook Messenger each contained his picture from his Facebook profile, but Norris argued they could have come from anyone and were not dated, rendering them unauthenticated. See id. at *2.

The Texas appellate court first explained that generally “text messages may be authenticated by evidence sufficient to support a finding that the matter in question is what its proponent claims” and that as the gatekeeper, the trial court’s role is to ensure that the proponent “has supplied facts sufficient to support a reasonable jury determination that the proffered evidence is authentic.” Id. at *3. The court then noted that text messages have been authenticated through the testimony of a witness with knowledge, i.e., the author of a text message, and also by the message’s “appearance, contents, substance, internal patterns, or other distinctive characteristics.” Id. at *4.

Applying those principles to the case at hand, the court discussed the evidence presented at trial. First, the victim testified that she knew the defendant through her grandfather. She then described that Norris sexually assaulted her. Following the assault, Norris asked her to keep the incident a secret. She also testified that she and Norris had previously communicated over Facebook Messenger and that she was positive she was communicating with Norris when he texted her the incriminating messages. She said that Norris’s profile picture appeared with every message, that the messages came from his account, and that the substance was similar to the conversation they had had in which he asked her to keep the assault secret. See id. at *4–5. The appellate court ruled that the victim’s testimony in connection with the content of the messages themselves was circumstantial evidence of authenticity and provided the jury with enough facts to make a determination that the Facebook Messenger texts were authentic messages from Norris. See id. at *6.

Sublet v. State, 442 Md. 632, 113 A.3d 695 (2015), presented a different set of facts that led to the exclusion of a printout of a Facebook conversation for lack of authentication. In Sublet, the defendant, Sublet, was charged with assaulting Parker and her relatives. Sublet sought to show that Parker was the instigator of the fight and, in support of his theory, introduced four pages alleged to have been printed from Parker’s Facebook page of a conversation between Parker and seven different individuals. See 442 Md. at 639.

Parker admitted that she had a Facebook account, that the profile picture associated with the Facebook conversation at issue was her profile picture, and that she participated in the conversation that was reflected in the printout Sublet’s attorney produced in court. See id. Mid-examination, the trial court stopped the questioning to raise a concern about the authenticity of the Facebook conversation printout. See id. at 642.

Sublet’s counsel then asked Parker whether there were entries in the printout that she did not write. Parker explained she did not write the entries on the last page of the printout. Upon further explanation, Parker testified that she gave her user name and password to “other people too.” Id. at 643. Accordingly, the state objected to the admission of the Facebook conversation printouts because Parker’s password was not a secret and because other people had accessed her page and attributed statements to her that she claimed she did not make. See id. at 643–44. The trial court sustained the objection, ruling, “I don’t even find by a preponderance of the evidence that there is a sufficient basis for reliability to admit it.” Id. at 644.

Upholding the trial court’s ruling, Maryland’s appellate court first noted that social media evidence presents unique challenges regarding authentication because of either authorized or unauthorized access to the social media accounts of individuals. See id. at 661–62. The appellate court then adopted the same standard set forth in the Texas case described above: that a trial court’s gatekeeping role regarding authenticity requires the court to ensure that a proponent has supplied sufficient proof “so that a reasonable juror could find in favor of authenticity or identification.” Id. at 666.

Applying that principle, the appellate court ruled that because Parker denied drafting the posts on the last page of the Facebook printout, her denial “of authenticity undermined its admissibility.” Id. at 672. And because the posts lacked “other distinctive characteristics” that supported that the proffered evidence was what it claimed to be, Sublet failed to provide sufficient facts to allow a jury to determine authenticity. This was especially so in light of Parker’s testimony that other individuals could access her account. “It is unclear, facially, that the entries on page four were part of the conversation initiated on page one.” Id. at 673. Accordingly, the exclusion of the Facebook printout was upheld.

These cases illustrate the challenges that proponents of social media evidence face concerning authenticity, absent testimony from the author of the social media evidence or forensic expert analysis of the evidence. Practitioners should make sure that they have enough circumstantial evidence to support the authenticity of a proffer of social media evidence to ensure that critical communications are admitted.

Kirsten Fraser is with Porter Wright Morris & Arthur, LLP, in Columbus, Ohio.

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